[CCWG-ACCT] Implementation flaw in Mission section

[Malcolm Hutty]

> Becky Burr wrote:
>> Malcolm is correct that proposed text is different from the Report. In the course of
>> drafting, the CCWG attorneys pointed out that the construct (no regulation of services
>> etc.) could create unintended consequences related to the application of antitrust
>> law. This was viewed as particularly problematic under the current circumstances,
>> where the supervision of the US government (which at least arguably provides some
>> protection for ICANN) is being withdrawn.

OK, I have no problem with finding an substitute for the word "regulate".

>> We attempted to eliminate this problem and discussed several approaches to doing
>> so. This approach seemed to get at the concern that was animating the CCWG in its
>> discussions on this point, use of the Registry Agreement and Registrar Accreditation
>> Agreement to regulate registrant conduct.

Reason noted.

>> Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to
>> regulate content. 

OK, so we seem to be in agreement.

>> But it is critical to keep in mind that the prohibition on regulation is, by
>> nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from
>> doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its
>> Mission.” So no matter what other mechanism ICANN might find to attempt to regulate
>> content, the Bylaws simply prohibit that.

Technically true, but the belt and bracers was wanted, and for good
reasons.

We did discuss at length whether this belt-and-bracer was superfluous;
this is hardly a provision that came about inadvertently.
We came to a clear and considered conclusion that it was necessary, and
that was the decision approved by Chartering Organisations. That
decision shouldn't now be undermined by incomplete implementation.

So I will take your message as acceptance of the discrepancy and need to
fix it, and read the above paragraph as a "by-the-way", rather than as
an attempt to argue that the draft Bylaw can remain as it is.

>> We are open to other constructs, so long as they don’t raise the same antitrust concerns
>> identified by Holly and Rosemary in our discussions. At a minimum, that requires us to
>> avoid the term “regulation” and to be as concrete as possible.

I did offer one alternative construct (see my previous message, copied
below); Greg and Bradley have criticised it. Bradley offered another,
and I gave my own criticism of that.

Perhaps it is best for us in CCWG to leave the implementation team to
consider the feedback given and come back with a proposal, working to
the objective of generalising this clause to match the generality of the
Report.

Malcolm.

> 
> 
> 
> 
> On 08/04/2016 12:28, Malcolm Hutty wrote:
>>
>> I have found a discrepancy between CCWG Final Report and the
>> implementation of the draft Bylaws in the Mission section.
>>
>> The Report approved by the Chartering Organisations says:
>>
>> "* Clarify that ICANN’s Mission does not include the regulation of
>> services that use the Domain Name System or the regulation of the
>> content these services carry or provide." (paragraph 134)
>>
>> The Draft Bylaws implements this as follows:
>> "*  ICANN shall not use its contracts with registries and registrars to
>> impose terms and conditions that exceed the scope of ICANN’s Mission on
>> services that use the Internet’s unique identifiers or the content that
>> such services carry or provide." (Article I Section 1.1 (c))
>>
>>
>> Firstly, this draft bylaw would pick on only one means by which ICANN
>> might seek to regulate content (through the RA or RAA contracts), and
>> prohibits that. There is no such limitation in the CCWG Report: our
>> Report prohibits any attempt to regulate content by ICANN, whether
>> through the RA/RAA contracts or by any other means.
>>
>> Certainly, the RA/RAA contract is the most likely means by which ICANN
>> might seek to regulate content and services. However, if ICANN manages
>> to come up with some other means (including means that cannot now be
>> imagined) then a full implementation of the CCWG Report would cover that
>> too.
>>
>> This is a clear and objective discrepancy.
>>
>> Secondly, the CCWG Report expresses this limitation as an exclusion from
>> the Mission. That was quite deliberate, and significant. We never
>> expressed this section as a bare prohibition on some action, it was
>> always considered to be essential that it was a Mission limitation.
>>
>> This aspect of the Report's proposal is not reflected in the draft bylaw
>> at all. That is also clear discrepancy.
>>
>> The significance of this is that a Mission limitation has a broader
>> scope. Excluding regulation of content from the Mission means any action
>> aimed at regulating content can be challenged, including actions that
>> (if done for some legitimate purpose) would be entirely OK. By contrast,
>> a Bylaw that merely prohibits a certain class of action is weaker,
>> because it says it's OK for ICANN to regulate content if it can find
>> some way of doing so within its permitted powers. That's simply not
>> consistent with the Report approved by the Chartering Organisations.
>>
>> Finally, in the future there may arise some disagreement as to whether a
>> specific activity constitutes "regulation", in particular in marginal
>> cases. Before we adopted the Report, our lawyers advised us not to seek
>> to tightly define this in every particular, but to allow precedent to
>> develop as cases arise. We accepted that advice. The implementation team
>> should therefore avoid seeking to resolve that deliberate ambiguity in
>> favour of the narrowest possible definition of regulation: again, that's
>> not consistent with the Report.
>>
>> I therefore propose we transmit the following request to the
>> implementation team.
>>
>> "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report
>> (prohibition of regulation of content) as a prohibition use of its
>> contracts with registries and registrars to regulate content. This does
>> not fully implement our Report. Please ensure that ICANN is prohibited
>> from regulating content through any mechanism, not only through registry
>> and registrar contracts. Furthermore, please exclude express this as an
>> exclusion from the Mission, not merely a bare prohibition on certain
>> actions, so that activities that would otherwise be permitted to ICANN
>> can be challenged if they are designed to achieve this prohibited purpose."
>>
>>
>> I hesitate to offer alternative wording: the lawyers may wish to come up
>> with their own, and we should let them. But I will offer these
>> observations and a brief suggestion.
>>
>> 1. I understand that the lawyers wished to avoid use of the word
>> regulation. Fine.
>> 2. When moving away from the word regulation, they also moved away from
>> describing a class of activity (regulation) to a specific action (using
>> X contract in Y way). I think this is where they went wrong. This in
>> itself limits the scope of the restriction.
>> 3. Sticking as closely as possible to the text of the Report that
>> Chartering Organisations have approved would seem advisable. So if they
>> want to avoid the word regulation, look for some synonym.
>>
>> Thus compare our Report:
>> "Clarify that ICANN’s Mission does not include the regulation of
>> services that use the Domain Name System or the regulation of the
>> content these services carry or provide."
>>
>> with the implementation team's draft bylaw
>>
>> "ICANN shall not use its contracts with registries and registrars to
>> impose terms and conditions that exceed the scope of ICANN’s Mission on
>> services that use the Internet’s unique identifiers or the content that
>> such services carry or provide."
>>
>> and my alternative suggestion for this Bylaw
>>
>> "ICANN's Mission does not include seeking to constrain or impose
>> requirements upon the services the use the Domain Name System, nor
>> seeking to constrain the content that those services carry or provide".
>>
>> That would follow the Report as closely as possible, preserve the
>> restriction as a limit on ICANN's Mission as intended, and still achieve
>> the lawyers' goal of avoiding the word "regulate".
>>
>>
>> Kind Regards,
>>
>> Malcolm.
>>
> 

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